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June 7, 1991


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


Plaintiff Manufacturers Hanover Trust Company ("MHT") moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment against all defendants and also moves for dismissal of defendant B.B. Andersen's counterclaims. At oral argument on May 13, 1991, the Court granted summary judgment to MHT for the reasons stated below.*fn1 For the same reasons, the counterclaims of defendant Andersen are also dismissed.


The present suit is an action to recover the principal sum of $1,811,865.57, plus interest, under a First Amendment to Modification and Extension Agreement (the "Loan Agreement"), a Renewal Note (the "Note") and a Guarantee, each of which is dated October 31, 1989.*fn2 The documents were executed in order to permit the refinancing of a real estate venture in which the defendants, among others, participated and which was first financed by MHT in 1982. The venture was undertaken by a general partnership called Jayhawk Towers, which, under a 1986 agreement (the "Modification and Extension Agreement") obtained an extension of the original maturity date of its obligation to MHT prior to the 1989 refinancing at issue here. In conjunction with the 1989 refinancing, Jayhawk Towers was dissolved, some of its partners paid down their shares of the partnership's obligation to MHT and certain other Jayhawk Towers partners formed a new, limited partnership which assumed all outstanding obligations of Jayhawk Towers. These new arrangements in October 1989 were memorialized by, inter alia, the Loan Agreement, the Note and the Guarantee. See Notice of Motion for Summary Judgment, Affidavit of Mary Ellen Whelehan, February 27, 1991 (the "Whelehan Affidavit"), and exhibits thereto; Reply Affidavit of Mary Ellen Whelehan, April 11, 1991 (the "Reply Whelehan Affidavit"), and exhibits thereto. The Note specified that the amount due to MHT under the Note was equal to a principal amount of $1,810,478.73 plus interest as set by the terms of the Note.

The Note matured on April 30, 1990, on which date there remained due and owing under the Note and the Loan Agreement outstanding principal in the amount of $1,803,266.39 plus unpaid deferred interest in the amount of $8,599.18 (which latter amount was capitalized and added to the outstanding balance), for a total of $1,811,865.57 of outstanding principal, as well as accrued unpaid interest for the period February, 1990 to April, 1990, in the amount of $45,081.66. Since April 30, 1990, interest has accrued on the outstanding principal balance of $1,811,865.57 at a default rate of interest provided for in the Note.


MHT has established that the agreements were made by the defendants and the defendants have not met their obligations thereunder. The default and nonpayment of the obligations under the Loan Agreement, Note and Guarantee, and the execution of those documents, are not denied and are therefore deemed admitted. MHT has thus established a prima facie case that it is entitled to judgment. See, e.g., Ihmels v. Kahn, 126 A.D.2d 701, 511 N.Y.S.2d 306 (2d Dep't 1987). Defendants argue that MHT is not entitled to summary judgment because there exist genuine issues of material fact involving their defenses against enforcement of the obligation and their counterclaims against MHT.

In opposing a motion for summary judgment, when the moving party has carried its burden under Fed.R.Civ.P. 56(c), the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Matsushita Electric Inc. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 325-26, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).

I.  The Claim of Improper Identification of the Corporate

Defendants' argument that Jayhawk Associates is an unrelated entity and is not the limited partnership sought to be held here, and that the limited partnership which entered into the Loan Agreement, Note and Guarantee at issue here is Jayhawk Tower Associates, L.P., is also without merit. Each of the documents at issue, as well as the Dissolution Agreement of Jayhawk Towers, the original general partnership, states that the limited partnership assuming the general partnership's obligations, was to be named Jayhawk Associates. The Loan, the Note and the Guarantee signed by the partners referred to the new partnership as Jayhawk Associates. Exhibits A, B, C and J to the Whelehan Affidavit, supra. The Note, Exhibit B to the Whelehan Affidavit, is signed by "Robert L. Brock [Sr.]" directly under the two lines which read "Jayhawk Associates, L.P. (a Kansas limited partnership)" and his signature is notarized as having been signed by him "on behalf of Jayhawk Associates, a Kansas limited partnership," at which time he "acknowledged the execution of the same . . . in his capacity as a duly authorized officer of the general partner of the partnership" based on his position as president of B & A Development Co., Inc. Exhibit B to the Whelehan Affidavit, supra; see also Exhibits A, C and J. Accordingly, whether Jayhawk Associates, L.P. is correctly named is not a genuine issue of material fact. The entity held in this action is that limited partnership which owns the buildings known as Jayhawk Towers, and whether it now uses the name Jayhawk Associates, L.P. or Jayhawk Tower Associates, L.P., the individuals named in this action are partners of that partnership and the guarantors of the Note. The Complaint and other papers in this action are clear as to what entities and what individuals are sued.*fn3

II. Other Claimed Issues of Fact

The other alleged issues of fact raised by the defenses pleaded are:

1. Whether MHT was negligent in failing to obtain a letter of credit from Alfred Bloomingdale, who died in 1982 and was originally a general partner of Jayhawk Towers, in failing to pursue Bloomingdale's estate to recover his share of indebtedness (the "Bloomingdale share"), and in failing ...

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